Fortunato J. Mendes - Page 33

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          determined that there is a deficiency and has mailed notice                 
          thereof to the taxpayer, the deficiency procedures limit the                
          Commissioner’s authority to assess and collect both the                     
          underlying tax and the addition.  If we were to treat a post-               
          notice original return (post-notice return) as a return for                 
          purposes of the section 6654(d)(1)(B)(i) safe harbor, then                  
          sections 6665(b)(2) and 6213(a) would be in conflict.  If a post-           
          notice return were a return for purposes of the safe harbor, then           
          section 6665(b)(2) would allow the Commissioner to disregard the            
          deficiency procedures and immediately assess and collect any                
          unpaid section 6654 addition.  Section 6213(a) prohibits the                
          Commissioner from immediately assessing and collecting the                  
          section 6654 addition in a post-notice return situation, however,           
          because section 6665(b)(2) indisputably makes the deficiency                
          procedures applicable to the section 6654 addition if the                   
          taxpayer has made no return when the Commissioner issues a notice           
          of deficiency.17  If we disregard the post-notice return for                
          purposes of both sections 6654(d)(1)(B)(i) and 6665(b)(2), we are           
          able to avoid a conflict and interpret sections 6213, 6654, and             


               17  We recognize that, in this case, the 1988 return showed            
          a loss.  Therefore, based upon that return, petitioner had no               
          obligation to pay estimated taxes, and any issue concerning the             
          Commissioner’s inability immediately to assess a sec. 6654                  
          addition to tax by virtue of sec. 6213(a) would be moot.                    
          Nonetheless, not every post-notice return will foreclose a                  
          section 6654 addition, which addition, in the absence of sec.               
          6213(a), would immediately be assessable.                                   





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